Yilmaz v Specialty Fashion Group Limited
[2018] VCC 1375
•23 August 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-00059
| NURSIMA YILMAZ | Plaintiff |
| v | |
| SPECIALTY FASHION GROUP LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 10 November 2017 and 14 December 2017 | |
DATE OF JUDGMENT: | 23 August 2018 | |
CASE MAY BE CITED AS: | Yilmaz v Specialty Fashion Group Limited | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1375 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – paragraph (a) of the definition of “serious injury” – back injury – leave sought to bring common law proceedings for “pain and suffering damages” and “pecuniary loss damages” – issues as to whether plaintiff suffered compensable injury, credit issues, the extent and nature of any alleged injury, capacity for work
Legislation Cited: Accident Compensation Act 1985 (as amended); Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Acir v Frosster Pty Ltd [2009] VSC 454; Hunter v Transport Accident Commission [2005] VSCA 1; Mobilio v Balliotis [1998] 3 VR 833; Dordev v Cowan & Ors [2006] VSCA 254; Transport Accident Commission v Campbell [2015] VSCA 7; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Palmer Tube Mills (Aust) Pty Ltd & Anor v Semi Semi: Transport Accident Commission & Anor v Streicher; Transport Accident Commission & Anor v Aust [1998] 4 VR 439; Davies v Nilsen and Transport Accident Commission [2014] VSCA 278; Grace v Elmasri [2009] VSCA 111; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Mazevska v R [2014] VSCA 178; Haidar v Transport Accident Commission [2016] VSCA 182; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram with Ms K Gladman | Melbourne Injury Lawyers Pty Ltd |
| For the Defendant | Ms B A Myers | Hall & Wilcox |
HIS HONOUR:
Introduction
1 By way of Originating Motion filed on 11 January 2016, Ms Nursima Yilmaz (“the plaintiff”), seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”), to bring common law proceedings for a lower back injury suffered by her during the course of her employment with Speciality Fashion Group Limited (“the defendant”). She alleges that she was required to repeatedly lift and carry heavy loads, including up and down ladders, and to unpack boxes, and more particularly, on 28 June 2012, when she was attempting to pull a rack of clothes through the entry door, and as she did so, the wheel of the rack came off, causing the rack and the clothes to fall to the floor, after which the plaintiff attempted to lift the rack to put the wheel back on and so caused her injury (“the injury”).[1]
[1]The description of the injury is from the Originating Motion. (Although this was broadened during the course of the trial and in the contents of the plaintiff’s “second affidavit” sworn on 9 October 2017).
2 The plaintiff seeks leave to bring proceedings in relation to the injury for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s134AB(37) of the Act.
3 The plaintiff and two treating general practitioners, Dr Suzan Al-Alawi and Dr Paul Wing-Fei Mak, gave evidence and were cross-examined. Both parties tendered a large number of documents.[2]
[2]See Annexure “A”
Relevant legal principles
4 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[3]
[3]See s134AB(19)(a) of the Act
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act.[4] This paragraph reads:
“serious injury means—
(a) permanent serious impairment or loss of a body function; … .”
[4]Although the Originating Motion pleads paragraph (c) also, Leading Counsel for the plaintiff made clear in his opening that only paragraph (a) would be relied upon (see Transcript (“T”) 2, Line (“L”) 7)
6 The part of the body said to be impaired for the purposes of paragraph (a) is the lower back of the plaintiff.
7 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)The “injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the defendant on or after 20 October 1999;[5]
(b)The “injury” and the resulting impairment under paragraph (a) must be “permanent”, that is, permanent in the sense that it is “likely to last for the foreseeable future”;[6]
(c)The “consequences” to the plaintiff of the injury in relation to “pain and suffering” and “pecuniary loss” must be “serious”. That is:
“… when judged by comparison with other cases in the range of possible impairments … as the case may be … [can be], fairly described as being more than significant or marked, and as being at least very considerable.”[7]
[5]See s134AB(i) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[6]See Barwon Spinners Pty Ltd & Ors v Podolak (op cit) at paragraph [33]
[7]See s134AB(38)(b) and (c) of the Act
8 Section 134AB(38)(b) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. In the event that a worker satisfies sub-paragraph (i) but not sub-paragraph (ii) of s134AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for recovery of “pain and suffering damages” only. A worker who satisfies the loss of earning capacity requirements of s134AB is entitled as a “matter of statutory construction” to have leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages”.[8]
[8]See Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraphs [60]-[64]; Acir v Frosster Pty Ltd [2009] VSC 454
9 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden[9] to establish:
(a)Generally, that as at the date of hearing, he or she has a loss of earning capacity of 40 per cent or more measured as set out in paragraph (f) of s134AB(38) of the Act;[10]
(b)After the date of the hearing, he or she has to establish he or she will continue to permanently have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
[9]See s134AB(19)(b) and s134AB(38)(e) of the Act
[10]See s134AB(38)(e)(i) of the Act
10 In determining the application, the Court:
(a)Must not take into account psychological or psychiatric consequences of the back injury for the purposes of paragraph (a) of the definition of “serious injury”;[11]
(b)Must make the assessment of “serious injury” at the time the application is heard;[12]
(c)Must give reasons that disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application.[13]
[11]See s134AB(38)(i) of the Act
[12]See s134AB(38)(h) of the Act
[13]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [33]-[36]
The issues
11 Counsel for the defendant initially gave some indication to the Court as to what were the issues in the proceeding.[14] At the conclusion of this proceeding, both parties made written submissions, and in her submissions, counsel for the defendant submitted that the issues are:
(a)The plaintiff’s credibility/reliability;
(b)Whether the plaintiff suffered an injury to her spine arising out of or in the course of her employment and, in particular, on 28 June 2012 and/or late July/early August 2012;
(c)If yes to (b), what is the injury? If the injury is an aggravation of pre-existing degenerative change in the plaintiff’s spine, what is the extent of the aggravation?
(d)Whether the plaintiff has any relevant incapacity for employment; and
(e)Range.
[14]T12, L5 – T13, L22
The evidence of the Plaintiff
12 The plaintiff relies on her affidavits sworn on 14 September 2015 (“the first affidavit”)[15] and on 9 October 2017 (“the second affidavit”).[16]
[15]See exhibit 1 at pages 7-17 Plaintiff’s Court Book (“PCB”)
[16]See exhibit 1 at pages 22-26 PCB
13 During her evidence-in-chief, the plaintiff swore that she had read those affidavits about a week ago to refresh her memory and that the contents of those affidavits were “true and correct” at the time they were sworn.[17]
[17]T19, L24-31
14 In particular, the plaintiff gave the following evidence by way of her first affidavit:
·She was born in Turkey in August 1962 (making her presently fifty-five years old), and migrated to Australia with her family in 1969, when she was seven years of age. She attended school in Australia and completed Year 11 studies in or about 1979.
·The plaintiff is a divorcee who has two adult children and also two grandchildren.
·After leaving school, the plaintiff has had the following employment:
(a)Initially she was employed as a sewing machinist, and later, as a process worker, which continued to about 1985, when she stopped work because of her first pregnancy;
(b)After the birth of her son, she then returned to part-time process work for about six months, before becoming pregnant with her second pregnancy;
(c)At the end of 1989, she returned to full-time process work and continued those types of duties until about 1993, after which she was out of the workforce for a period, essentially looking after her children, although occasionally performing process-type work;
(d)In or about 2001, she commenced employment with Fantastic Furniture, performing casual sales work at various stores, including Thomastown, Preston and Maribyrnong, and was employed by Fantastic Furniture for about two years. From there, she moved on to a furniture store in Highpoint Shopping Centre, called Pine Plus Furniture (“Pine Plus”), and again, worked for about two years in a sales capacity;
(e)The plaintiff then worked for Merringtons Optical Sales (“Merringtons”) in various stores over a period of about three years, and in about 2009, commenced work with Harvey Norman in Preston and was employed for about two years in a retail sales capacity;
(f)After leaving Harvey Norman, she worked at Super A-Mart in Campbellfield in a similar capacity for about three months, and then worked at the Veneto Club for about three months;
·When working at Merringtons, she was being used in a managerial role, but not being paid accordingly, which led to some “anxiety and depression” over a period of time, causing her to consult Dr Mak at the Merlynston Village Medical Centre for treatment of that condition. She also recalled being diagnosed with Diabetes, which also upset her, and she was prescribed medications, including Zoloft, to try and improve her “mental outlook”.
·When she commenced work at Harvey Norman, she “picked [herself] up” and any psychological issues receded into the background. She does note that she had other unrelated health issues at that time, including some abnormal ovarian cells.
·The plaintiff deposed that prior to her commencement of employment with the defendant, she had suffered some intermittent back pain. In particular, she deposed:
“… I understand that my medical records disclose an attendance on my general practitioner Dr Mak at Merly[n]ston Medical Centre in North Coburg in July 2011 and he arranged for me to undergo an x-ray of my lumbar spine which I understand showed that there was first grade anterolisthesis at L5-S1 level but no other significant abnormality was detected. My belief is that the back symptoms which I was suffering at this time were thought to be related to a kidney infection. I do not believe that I was suffering from any lower back condition at the time I commenced employment with the Defendant.”[18]
[18]See exhibit 1, paragraph [9] of the first affidavit at page 9 PCB
·The plaintiff commenced employment with the defendant on 16 November 2011 in the capacity of a sales person working in stores, including the Millers store at the Gladstone Park Shopping Centre, Highpoint Shopping Centre, and also the Millers store in Westfield Shopping Centre at Airport West. She has also worked in stores, including at Sunshine and Brimbank. In particular, she deposed:
“… My work involved me lifting and carrying clothes up and down ladders and unpacking of boxes of clothes. The clothes would be loaded from the boxes for display and some of the clothes would be placed on racks which were provided for displays. Other tasks involved the erection of posters and other like duties to advertise the stores wares. The store was involved in mainly selling women’s clothing.”[19]
[19]See exhibit 1, paragraph [10] of the first affidavit at page 10 PCB
·The plaintiff also gave evidence as to her suffering a lower back injury. In particular, she deposed:
“I suffered lower back injury throughout the course of my work with the Defendant particularly on 28 June 2012 as a result of the manual handling I was required to perform. On t28 (sic) June 2012 I was lifting and carrying clothes up and down ladders and unpacking boxes of clothes. I tried to pull a rack of clothes which had been loaded with clothes for display and was moving it into a position closer to the entry door. I believe the rack weighed 30 kgs or more when packed with clothes. As I was pulling on the rack the wheel came off the rack and the clothes began to fall to the floor. I tried to prevent this happening and put the clothes back up where I could. In the end some clothes were on the floor but I managed to push the rack to an upright position. In so doing I caused further injury to my lumbar spine.”[20]
[20]See exhibit 1, paragraph [11] of the first affidavit at page 10 PCB
·The plaintiff described taking “off the shelf” painkillers and that in late July 2012, was prescribed Panadol Osteo. The plaintiff asserted that the pain “did not settle down” and she began to “suffer right leg pain”, causing her to consult Dr Mak, who referred her for a CT scan of her lumbosacral spine, which was performed on 29 October 2012. She described Dr Mak’s treatment to include pain-relieving and anti-inflammatory medications, and also some physiotherapy in the latter part of 2012.
·She noted that Dr Mak considered her prognosis to be “guarded”, as there had been the emergence of a “Chronic Pain Syndrome”. She continued to suffer referred pain, particularly into her right leg, which extended down the leg to the foot.
·Dr Mak considered that she was suffering from some psychological reaction to her injuries and the degree of pain that she was suffering. She continued to consult Dr Mak at the clinic, and on some occasions saw other practitioners, including Dr Joseph Slesenger.
·Because of the absence of Dr Mak, she was eventually referred to the Orthopaedic Department at the Austin Hospital, where she initially attended on 4 July 2013, and arrangements were made for her to undergo an MRI scan on 17 July 2013.
·On her return for review on 1 August 2013, she was advised to undertake an L3-4 epidural injection, and she underwent this treatment by way of a CT-guided epidural injection to L3-4 on 11 November 2013.
·She returned to the Orthopaedic Department at the Austin Hospital on 20 March 2014, reporting that the epidural injection had “provided no real relief for [her] level of symptoms”. There was some discussion about her undergoing surgery, but she was “extremely reluctant to go down that path” and subsequently, a further epidural injection was performed on 28 April 2014, and after that, she was prescribed Amitriptyline as an analgesic.
·A further epidural injection was administered on 1 September 2014, from which she did not derive much benefit, and a further epidural injection was administered in January 2015.
·The plaintiff, also during 2013, began consulting Dr Al-Alawi at the same clinic as Dr Mak, who subsequently left the clinic. Dr Al-Alawi referred her to the spinal surgeon, Mr Gerald Quan, who she initially consulted on 9 July 2013. In particular, she deposed that although Mr Quan reported that she had “lower back symptoms over many years”, she does not believe that is correct and he must have misunderstood.
·The plaintiff referred to her earlier comments, that although she had some intermittent back symptoms prior to the alleged work injury, she understood that pain to have been caused by a kidney infection, which subsequently cleared up. She noted that the pain she suffered after June 2012 was different to the earlier pain she had suffered, and the pain from June 2012 included radiation down her right leg.
·Mr Quan also organised a further MRI scan on 17 July 2013 and it was him who, after her second attendance on 1 August 2013, recommended the epidural cortisone injection.
·The plaintiff attempted to remain at work, but, with increasing lower back problems, Dr Mak eventually put her off work, ceasing altogether in February 2013, and she has not performed any work since that time. Her employment with the defendant was terminated on 13 October 2013, after she had exhausted her sick leave and annual leave.
·She noted that in addition to her “physical injuries”, she has been referred for psychiatric assessment, initially by a psychiatrist, Dr Raid Al Humrany, who was initially consulted on 12 April 2013. At that time, she was suffering from a “low and depressed mood with anxiety” and her sleep was interrupted.
·Although she had earlier been prescribed antidepressant medication, Dr Al Humrany suggested changing such medication to the antidepressant, Pristiq, and the plaintiff stated:
“… although I did take that medication I suffered some side effects including numbness and a feeling of loss of control of my body. I declined to continue to take anti-depressant medication. I consulted Dr Al Humrany on two or three occasions.”[21]
[21]See exhibit 1, paragraph [23] of the first affidavit at page 14 PCB
·The plaintiff has also been referred to a psychologist, Dr Sophia Xenos, who she initially consulted in September 2013, and has continued to consult up to the time of the swearing of the affidavit, usually every three or so weeks, depending on Dr Xenos’ availability and her availability. The plaintiff noted that Dr Xenos assists her in dealing with her pain and also how to cope with the loss of her working capacity and restriction in her domestic and recreational activities. She noted she has been trying to restrict her consultations with Dr Xenos to once every two months or so.
·At the time of her first affidavit, the plaintiff described her condition in the following terms:
“At the present time, I am not working and have not worked since early 2013 when after a period of annual leave I realized that my symptoms were not going to settle down and my employment was terminated as I was not able to perform my duties any longer. I have despite ceasing work continued to suffer constant variable pain which has affected my lower back and radiates into my right buttock, and right leg and down as far as the foot. That pain in my leg is in the context of pins and needles and numbness which are present. My ability to walk or stand for extended periods of time is restricted. So too is my ability to sit for extended periods. My sleep is interrupted on a constant basis by reason of the pain which I suffer. I am no longer able to undertake domestic tasks such as vacuuming, mopping and shopping and although I do some driving I only drive locally. My married daughter and to a lesser extent my son assist with the heavier housework for me. My son does most of the gardening work for me. My social life has been significantly restricted. I used to enjoy going to pubs and restaurants with friends but now rarely do so.”[22]
·At the time of swearing her first affidavit, the plaintiff was continuing to use pain-relieving medication, including Panadol Osteo (six tablets a day) and Tramadol (100 milligrams), for severe pain. Because of suffering tremors in her legs, she has been prescribed Amitriptyline to try and reduce those effects.
·She considered that her capacity for employment has been “significantly impaired by reason of [her] spinal injuries”. She noted that she has always been involved, in recent years, in the retail side of things, which does involve repeated handling of stock, and she does not believe her spine will stand up to that sort of work any longer.
·Furthermore, she noted she suffers from psychiatric symptoms of Anxiety and Depression, and these symptoms persist “despite the ongoing psychological counselling which [she] continues to receive on a regular basis”.[23]
[22]See exhibit 1, paragraph [23] of the first affidavit at page 15 PCB
[23]See exhibit 1 at page 16 PCB
15 By way of her second affidavit, the plaintiff gave the following evidence:
·The plaintiff refers to further incidents of injury in the following terms:
“… a similar incident involving the same clothes rack occurred about a month after 28 June 2012, however I am unable to recall the precise date. Again the problem occurred on this occasion because the wheel came off the rack. I also recall a third occasion when I was asked to move the rack and believe this was Sunday, 9 September 2012. On this occasion, I told the manager that I was not going to move the rack because I did not want to hurt my back again trying to lift it when the wheel came off and suggested that a red sticker or the like be applied to the rack so that people would know that it was defective and I recall the manager Maria saying ‘yeah, okay’.”[24]
[24]See exhibit 1, paragraph [2] of the second affidavit at page 22-23 PCB
·On 29 December 2014, the plaintiff attended the Emergency Department of the Austin Hospital because of severe pain and sciatic pain. A further MRI scan of her lumbar spine was performed on 7 January 2015, and on 12 January 2015, she underwent a further CT-guided injection which did not cause any significant improvement in her symptoms. When attending the Emergency Department on 15 January 2015, she was discharged with further analgesia for pain relief.
·She was reviewed at the Austin Hospital on 22 January 2015, and at that stage had had recommendations for surgery and she agreed, at that time, to be placed on the surgical waiting list. Ultimately, she became intimidated about the thought of these procedures and was removed from the waiting list.
·On her return to the Austin Hospital on 17 September 2015, it was decided to try a further injection, which was undertaken on 23 October 2015, which provided relief of her symptoms for some weeks.
·On review at the Austin Hospital on 26 May 2016, it was recommended that she receive further injections, and she underwent a further L3-4 epidural injection on 20 June 2016.
·In the latter part of 2016, a pre-operative assessment process was commenced and a myocardial perfusion study on 9 February 2017 showed some mildly abnormal signals, and she was then required to take medications, including Metrol 50 and aspirin, and she was told that her myocardial situation would have to be stabilised before her surgical procedure would be performed.
·She consulted a cardiologist on 11 April 2017, at which time she underwent a stress test, and this was later followed by a CT coronary angiogram, performed on 28 June 2018, and it is her “understanding” this disclosed a very low cardiovascular disease risk.
·On 23 June 2017, when contacted by the hospital about the planned spinal surgery, she expressed ongoing concerns, and at that time was removed from the waiting list and referred back to her general practitioner, Dr John Taylor.
·In July 2017, she returned to the Austin Hospital, where she underwent a further L3-4 CT-guided epidural injection, which improved her level of symptoms “somewhat”, and she intends to continue to attend the Austin Hospital for regular review, and potentially repeat the injection when she experiences a deterioration in her level of symptoms.
·Because she has decided that she does not want to undergo surgery, she has to live with the ongoing pain, which is “variable in severity” and “will likely be present for the remainder of [her] life”.[25] She is presently taking 100 milligrams of Tramadol, as needed, particularly at night time, as she cannot sleep because of the pain. She uses Panadol Osteo, two to three tablets daily, supplementing the medication with Panadeine Forte, up to four tablets, depending on the severity of her pain levels on any particular day.
·The pain is not confined to her back, but radiates down through the right buttock and down through the right leg as far as the foot, and such pain has also been persistent over an extended period of time, causing suffering of pins and needles and numbness, as well as in her right lower limb. She noted that her sleep is “interrupted on a constant basis by reason of the pain”.[26]
·She continues to be very significantly restricted in domestic tasks and relies on her daughter, in particular, and her son, to assist with vacuuming, mopping, shopping and the like. Socially, her lifestyle has been completely disrupted, and she is no longer nearly as active as she was.
·She asserted that her symptoms have prevented her from working for an extended period of time and she believes, having regard to her “age, medical condition, vocational constraints”, that she would be unreliable in any work environment because of the ongoing pain that she suffers.
[25]See exhibit 1 at page 25 PCB
[26]See exhibit 1 at page 25 PCB
16 The plaintiff also relied on an affidavit from her daughter, Derya Baritakis, sworn on 9 October 2017.[27] In her affidavit, Ms Baritakis deposed that prior to the injury suffered by her mother, she was able to care for herself, look after herself, and undertake her shopping and lead an independent life. She was also socially active. Ms Baritakis described that since the onset of “the injuries”, her mother’s lifestyle has been turned on its head, and she is now very dependent on both her, and also her husband.
[27]See exhibit 1 at pages 27-29 PCB
17 Ms Baritakis noted that her mother is limited in her driving and has been reliant on her to assist. She also noted that notwithstanding her mother has had various “potent” medications and various spinal injections, her observation is that her mother continues to suffer constant variable lower back pain and pain referred into her right leg.
18 The plaintiff also relied on an affidavit from her friend, Ms Tulin Nouri, sworn 10 October 2017.[28] In her affidavit, Ms Nouri described herself as being a friend of the plaintiff for approximately five or six years. She noted that when she first knew the plaintiff she was a “happy go lucky lady who was full of life and quite independent and outgoing”.[29]
[28]See exhibit 1 at pages 30-31 PCB
[29]See exhibit 1 at page 30 PCB
19 Since sustaining her “spinal injury”, Ms Nouri noted that the plaintiff’s lifestyle has been significantly disrupted and that Ms Nouri has to assist her from time to time with shopping and other chores that she is unable to attend by reason of her spinal pain.
The medical treatment of the Plaintiff
20 Initially, I refer to exhibit 2, which consists of the various radiological studies undertaken by the plaintiff. They include:
(a)An x-ray of the lumbar spine organised by the plaintiff’s then treating general practitioner, Dr Mak, and undertaken on 14 July 2011. The report of the radiologist was:
“In the lumbar spine there is a first grade anterolisthesis at L5/S1 level. Otherwise bony texture is normal. Disc spaces are well maintained. Sacro-iliac joints have normal appearance.
The anterolisthesis is most likely related to bilateral pars defects. This may be confirmed with CT.”[30]
[30]See exhibit 2 at page 32 PCB
At the same time, the plaintiff underwent x-rays of both knees which indicated “minimal patellofemoral osteophytes bilaterally consistent with early degenerative change … ”.
(b)The plaintiff had a CT scan of her lumbosacral spine, organised by Dr Mak, and undertaken on 29 October 2012. The radiologist reported:
“Moderate L3/4 central canal stenosis secondary to disc bulge with ligamentum and facet hypertrophy L5 spondylolysis.”[31]
[31]See exhibit 2 at page 33 PCB
(c)The plaintiff had an MRI scan of her spine undertaken on 17 July 2013. The radiologist reported:
“Moderately marked L3-4 vertebral canal narrowing secondary to a broad-based disc bulge, local ligamentum flavum hypertrophy and facet joint osteoarthropathy. The traversing L4 nerve roots are probably compressed within the lateral recesses bilaterally at this level.”[32]
(d)The plaintiff had a further MRI scan of her spine undertaken on 8 January 2015. The radiologist reported:
“Moderate to severe central canal stenosis at L3-4, slightly worse compared with the prior examination from 16/07/2013 due to persistent degenerative changes at this level. Moderate L3-4 neural exit foraminal stenosis with no appreciable distortion of the exiting right L3 nerve root.”[33]
[32]See exhibit 2 at page 34 PCB
[33]See exhibit 2 at page 35 PCB
21 The plaintiff received much of her earlier treatment at the Merlynston Village Medical Centre in North Coburg and in particular, from the general practitioners, Dr Al-Alawi and Dr Mak. The plaintiff relies on a report from Dr Mak dated 25 May 2013[34] and a report from Dr Al-Alawi dated 13 December 2017, which was obtained during the course of the proceeding.[35]
[34]See exhibit 3 at pages 36-37
[35]See exhibit 2 at pages 37A-37B
22 I will return to those reports shortly, but initially refer to exhibit 8, which is referred to as the clinical notes from the North Coburg Medical Centre, which, indeed, appears to be the successor of the Merlynston Village Medical Centre, both of which are placed at Level 1, 11-17 Orvieto Street, North Coburg.
23 Such notes set out the medical history of the plaintiff, including consultations, prescriptions and various diagnoses. The notes run from approximately 9 November 2004 through to approximately 5 April 2016.
24 From about February 2009 through to approximately October 2010, Dr Mak was essentially the treating general practitioner, although the plaintiff also consulted other doctors on occasion and, in particular, Dr Al-Alawi.
25 I refer to the following consultations:
(a)On 19 April 2010, she consulted Dr Mak, and the reason for the visit was to review a mental health care plan and her enquiries about obtaining a Disability Support Pension. At that time, it was noted that she was not yet seeing a psychologist, but had difficulties with lethargy and being unable to concentrate. At that time, she was prescribed Zoloft tablets;
(b)On 8 May 2010, she consulted Dr Mak, and the reason for the visit was her ongoing diabetes mellitus and her application for the Disability Support Pension. At that time, she was referred to a psychologist, Dr Xenos, and a mental health care assessment and plan created;
(c)On 22 May 2010, she consulted Dr Mak, and the reason for her visit was her ongoing diabetes mellitus and the Centrelink report asserting that she was not qualified for the Disability Support Pension;
(d)On 5 July 2010, she consulted Dr Mak, and the reason for the visit was her ongoing Asthma and the mental health care plan review. It was noted she was going to change to a different psychologist, that is, to Dr Chan in Glenroy;
(e)On 9 August 2010, she consulted Dr Mak, and the reason of the visit was a complaint of Gingivitis and, more particularly, renewal of prescriptions for Temaze and Zoloft;
(f)On 6 August 2011, she consulted Dr Mak, and the reason for visiting him at that time was an ongoing cough, vitamin D deficiency, diabetes mellitus and hypercholesterolaemia. At that time, the Zoloft was ceased, but she was commenced on Pristiq samples. In particular, it is noted that she was referred to physiotherapy for lower back pain and to a dietician.
There is a reference to the “XR satisfactory” which is later explained by the evidence of Dr Mak;
(g)On 23 September 2011, she was seen by Dr Nabil Guindi, and the reason for her visit was back pain and “frequency, stinging”. Following this consultation, there were several consultations over the balance of 2011 and 2012 in relation to pelvic and abdominal pain;
(h)On 24 March 2012, she consulted Dr Mak, and the reason for the visit was “dry eyes”;
(i)On 11 May 2012, she consulted Dr Al-Alawi for gynaecological issues;
(j)On 12 June 2012, she again consulted Dr Al-Alawi, where various test results were discussed (in relation to prior consultation) and the plaintiff complained of “Anxiety/Depression, disturbed sleep, a lot of concerns, no motivation, no suicidal ideation, unable to work full time, declined met cert at this stage”;[36]
[36]See exhibit “H” at listed consultations
(k)On 25 July 2012, she consulted Dr Al-Alawi and, again, there was discussion about the result of the cytology and gynaecological examinations;
(l)On 18 August 2012, she consulted Dr Mak and the reason for the visit was for “Gpmp Review” and “Team Care Arrangement”;
(m)On 20 August 2012, she consulted Dr Mak and the reason for her visit included issues related to diabetes mellitus, iron deficiency, upper respiratory tract infection and impaired fasting glucose, which gave rise to various tests and prescribed medication;
(n)On 25 August 2012, she again consulted Dr Mak and the reason for the visit was Vitamin B12 deficiency and upper respiratory tract infection, for which she was prescribed Klacid;
(o)On 13 October 2012, she consulted Dr Mak and the reason for the visit was to discuss giving up cigarettes, and also her ongoing Anxiety/Depression, although it was noted that she was not keen to have counselling, nor to take tablets for such condition.
At that time, she also complained of her ongoing Asthma condition. In particular, it was recorded by Dr Mak:
“Bilateral Leg pain – worsening over last 6/12-wrose with R, at night; concerned ab DM neuropathy; no relief fr 6 panadol osteo daily
[… unclear] dull ache over lat thigh to lat ankle – more in R; ? shakes ? some weakness during the day; minimal symptz in feet;.[37]
[37]See exhibit 8 at listed consultations
(sic)
It was noted that the plaintiff had undergone an x-ray of her lumbar spine in 2011, which revealed first degree anterolisthesis at L5-S1, and Dr Mak requested both a plain x-ray of her knees and a CT scan of her lumbar spine;
(p)On 7 November 2012, she consulted Dr Al-Alawi, where it was recorded, in part:
“OA
Back pain with radiculopathy
Had xray showed deg changes/both knees
Lumbosacral CT showed L3/4 canal stenosis secondary to disc bulg, LT spondylosis
… .”[38]
[38]See exhibit 8 at listed consultations
Dr Al-Alawi noted there was no neurological impairment and ordered back-strengthening exercises and back care, with the plaintiff being advised to carry on normal activity, but there would be referral to a physiotherapist and specialist;
(q)On 21 November 2012, she again consulted Dr Al-Alawi, complaining of back pain with radiculopathy affecting daily activity. At that time, the plaintiff was keen to be referred to the Austin Hospital and she also required prescriptions. Dr Al-Alawi provided an Austin Hospital referral, and prescriptions for Celebrex and Diabex;
(r)On 3 December 2012, she consulted Dr Mak, and the reason for her visit was bilateral knee osteoarthritis, lumbar disc bulge, spinal canal stenosis, lumbar spondylosis and lumbar disc bulge, all of which formed the diagnosis made by Dr Mak.
At that time, a further letter was written by Dr Mak to the Austin Hospital and prescriptions given for Mobic, Diabex, Logynon and Methopt;
(s)On 7 January 2013, she again consulted Dr Al-Alawi, and the reason for the visit was “back pain”. It is recorded that the plaintiff had physiotherapy to good effect and will see a specialist in April. Furthermore, she was to recommence Celebrex and undertake back strengthening exercises and back care advice;
(t)On 19 January 2013, she again consulted Dr Mak, and the reason for the visit was to obtain a Centrelink report in relation to a Disability Support Pension, and there was to be an interview in February 2013. At that time, Celebrex and Panadol Osteo were ceased and there were prescriptions for Diabex, Methopt and Mobic;
(u)On 9 February 2013, she consulted Dr Mak and the reason for such review was:
“Gpmp Review – Item 725
Team Care Arrangement – Review of –Item 727 – need ongoing physio Rx
Lumbar spondylosis
Lumbar disc bulge – was on celebrex - ? diarrhoea, started on Mobic a mth ago – urinary frequency
Knee osteoarthritis.”[39][39]See exhibit 8 at listed consultations
(sic)
At that time, prescriptions were printed for Diabex, Mobic and Panadol Osteo, and a letter to Merlyn Physiotherapy;
(v)On 21 February 2013, she consulted Dr Al-Alawi, and the reason for the visit was an upper respiratory tract infection and “Back pain, Tend C4/5, L3/4, no neurological impairment”.[40]
Dr Al-Alawi records that a medical certificate was not given as she was covered to 23 February 2013 inclusive, and also at that time the plaintiff requested Celebrex, as Mobic was not effective. Dr Al-Alawi notes that Mobic would be ceased and a prescription would be given for Celebrex;
(w)On 25 February 2013, she again consulted Dr Al-Alawi and was given a medical certificate for back pain, and she will consult a specialist in one month. Dr Al-Alawi recommended back strengthening exercises, but to carry on with normal activity.
[40]See exhibit 8 at listed consultations
26 In particular, on 2 March 2013, she consulted Dr Mak and he has noted the diagnosis to be:
“Lumbar disc bulge
Lumbar spondylosis
…
Spinal canal stenosis.”[41]
[41]See exhibit 8 at listed consultations
27 The reason for the visit is recorded as follows:
“Lumbar disc bulge
Lumbar spondylosis – had Mobic for a mth; now changed to CELEBREX – to pick up script today, to stay on Panadol osteo 2 bd as well;
Spinal canal stenosis – going to claim WC; DOI 28/6/2012 – been to lawyer – going to make appoint + to get WC forms – been off work on MC since 10/2/13; running out on sick leave, to ? use up annual leave for ab 8 wks.”[42]
(sic)
[42]See exhibit 8 at listed consultations
28 The plaintiff also consulted Dr Mak on 9 March 2013, where a similar diagnosis was made and similar comments, save that is recorded on that occasion that there was a “2nd incident in Sep 12”.[43]
[43]See exhibit 8 re consultation on 9 March 2013
29 On 28 March 2013, the plaintiff consulted Dr Joseph Slesenger at the same clinic, and he has recorded:
“Low back pa[in]
Has had injury in June 2012
Was working in retail and was asked to move a rack of clotehs and the wheel dropped andf feelll and she injured her back whilst preventinga fall.”[44]
(sic)
Dr Slesenger notes that the plaintiff had remained at work until February 2013 and that the claim for compensation has not been accepted. He noted that the reason for the visit was “low back pain” and that her mood was “low”.
[44]See exhibit 8 at listed consultations
30 Both Dr Al-Alawi and Dr Mak gave evidence.
Evidence of Dr Suzan Al-Alawi
31 Dr Al-Alawi gave evidence that she was a specialist general practitioner, having a fellowship from the Australian and New Zealand Royal College. She confirmed that she used to work at the Merlynston Village Medical Centre and that she had consulted with the plaintiff in 2012. Furthermore, she confirmed that she was the author of a report dated 13 December 2017.[45]
[45]See exhibit 3 at pages 37A-37B PCB
32 Dr Al-Alawi gave evidence that she had no recollection of the plaintiff or, more particularly, what she did or did not say during the course of any consultation. In particular, I refer to part of her report dated 30 December 2017, wherein Dr Al-Alawi states, in part:
“After thoroughly reading the medical notes, I note the following:
(a)On 25/07/2012, Ms Yilmaz was seen by me for an unrelated issue.
(b)On 13/10/2012 Ms Yilmaz was seen by Dr Mak for, among other things, bilateral leg pain and she was sent for XRay and CT scan. No mention of back pain and no mention of work injury.
(c)On 7/11/2012 Ms Yilmaz was seen by me for radiology results which revealed degenerative changes and a disc bulge, which prompted my referral to physiotherapy and specialist at the Northern Hospital. Again, no mention of back pain and no mention of work injury.
(d)On 21/11/2012 Ms Yilmaz was seen by me for back pain and requested to be referred onto Austin Hospital instead of Northern Hospital (as the Northern declined to see her). This is the first time back pain is mentioned. No mention of work injury and no mention of WorkCover.
(e)On 3/12/12 Ms Yilmaz was seen by Dr Mak for back pain. No mention of work injury and no mention of WorkCover.
(f)On 7/1/13 Ms Yilmaz was seen by me for back pain. No mention of work injury and no mention of WorkCover.
(g)On 19/1/13 Ms Yilmaz was seen by Dr Mak for a Centrelink Medical Certificate, not a WorkCover certificate.
(h)On 9/2/13 Ms Yilmaz was seen by Dr Mak for back pain. No mention of work injury and no mention of WorkCover.
(i)21/2/13 Ms Yilmaz was seen by me for another Central Link (sic) Medical Certificate. I did not provide her with one at the time as her initial one from Dr Mak on 19/1/13 was still valid at the time.
(j)2/3/13 + 9/3/13 Ms Yilmaz was seen by Dr Mak who notes Ms Yilmaz had seen a lawyer and ‘going to claim WC’. First time WorkCover is mentioned.
If a patient tells me they have suffered a work-related injury, my usual practice is to ask them to notify reception of a WorkCover claim, and I would also record this in my notes.
Ms Yilmaz did not make a WorkCover claim at any of the times she was seen by me or my colleagues until March 2013. There is also no mention of a work related injury in any of my notes of 25 July 2012, 7 November 2012 and 21 November 2012. I do not believe Ms Yilmaz would have mentioned to me that she had a work related injury at any of the times she was seen by me because my notes make no mention of any work related injury or a WorkCover claim, and Ms Yilmaz did not make a WorkCover claim at any of the times she was seen by me. Nor is there any mention of a work related injury or a WorkCover claim in my colleague’s, Dr Mak’s notes on 13/10/2012, 3/12/12, 19/1/13, 9/2/13, which is around the same time she was seen by me. The first time this was mentioned was in March 2013. I did not see Ms Yilmaz since then.”[46]
[46]See exhibit 3 at pages 37A-37B PCB
33 Under cross-examination, Dr Al-Alawi confirmed that the first time she saw the plaintiff was on 11 May 2012 and on that day, Dr Al-Alawi sent the plaintiff for a “home medication management review”.
34 Dr Al-Alawi stated that such a review is undertaken by a pharmacist, and when queried as to why a doctor would send someone for a home management review, Dr Al-Alawi stated:
“That is one of the service[s] provided by Medicare in Australia. Any patient [who] has a chronic illness like diabetes, melitis (scil mellitus) or asthma or high blood pressure, they are on medication, check it regularly for long-term so we can send them the pharmacy to review her medication.
According to her medication review, the patient has diabetes and she is on diabetes medicine and also I notice she’s on asthma medication as well. So that’s why. The main thing is because she has diabetes and asthma.”[47]
[47]T185, L1-11
35 Dr Al-Alawi also accepted under cross-examination that she consulted with the plaintiff on 12 June 2012, at which time there was discussion about the plaintiff’s “anxiety and depression”. Dr Al-Alawi recorded that the plaintiff was having trouble sleeping and that she was unable to work full time. A medical certificate was offered but declined.
36 Dr Al-Alawi also confirmed that when she consulted with the plaintiff on 25 July 2012, there was a discussion about the “home medication management review”. Dr Al-Alawi confirmed that it would appear that the plaintiff had been prescribed Panadol Osteo prior to that date.
The evidence of Dr Paul Wing-Fei Mak
37 Dr Mak gave evidence that he was a qualified medical general practitioner and had been in practice for about thirty-three years. He confirmed that he had worked at the Merlynston Village Medical Centre from a “bit before” 2000 up to the end of 2013, during which time he consulted with the plaintiff.
38 Dr Mak also confirmed that he authored a medical report dated 25 May 2013 which had been forwarded to the solicitors acting for the plaintiff.[48] In that report, Dr Mak states that the plaintiff claimed that on 28 June 2012, while working late in the evening by herself at her place of employment, she was trying to move a rack of clothing (weighing over 30 kilograms at least) closer to the entrance of the store, when one of the wheels suddenly came off the rack, causing the rack full of clothes to collapse. In an unsuccessful attempt to maintain the upright position of the rack, the plaintiff was trying to reposition the rack, replacing the clothes in order on the rack, when she felt pain in her back, radiating to her legs. According to his notes, the plaintiff continued with her work and reported the incident to her store manager at a later time.
[48]See exhibit 3 at pages 36-37 PCB
39 Dr Mak was of the opinion that the plaintiff had suffered soft tissue injuries to her back and an aggravation of her spinal conditions of lumbar spondylosis, lumbar disc bulge, and spinal canal stenosis. She was treated with a course of analgesics, anti-inflammatory medications, and undertook a course of physiotherapy in December 2012, without symptomatic relief to her lower back pain and intermittent right leg pain. Dr Mak described the prognosis of the pain to be “very much guarded” and that she had now developed a “Chronic Pain Syndrome” with an “Adjustment Disorder with a mixture of Anxiety and Depression” (such diagnosis made by a psychiatrist who assessed her in April 2013).
40 Dr Mak considered that the employment of the plaintiff was a “materially contributing factor to [her] … injuries”.[49] At the time of writing his report, he considered her injuries to be stable and her future treatment would include a comprehensive program for her Chronic Pain Syndrome and Adjustment Disorder, as well as medications for symptomatic relief.
[49]See exhibit 3 at page 37 PCB
41 Because of her conditions, Dr Mak considered that it would be “difficult for her to participate [in] any alternative employment”.[50] Furthermore, he noted that her ability to retrain or be rehabilitated for suitable employment would be impacted by the requirement that any job in the retail environment would pose a lot of stress on her back, she is now over fifty years of age, she resides in Glenroy, and has not been offered any occupational rehabilitation services. Because of her ongoing symptoms, her activities of daily living and quality of life have been affected, and he considered it was “unlikely” that she would make a significant improvement with her symptoms in the foreseeable future.
[50]See exhibit 3 at page 37 PCB
42 Under cross-examination, Dr Mak was queried about a variety of his consultations. In particular:
(a) Dr Mak confirmed that he initially consulted with the plaintiff on 28 February 2009 when she complained of “feeling a bit down and a bit depressed” and did not feel like going out. At that time, she had been on Zoloft, 50 milligrams, and also under psychological counselling. Dr Mak increased the dosage of Zoloft to a full tablet per day. Dr Mak confirmed that Zoloft came in a packet of thirty with two repeats, which is effectively a three-month supply;
(b) The records would indicate that the plaintiff saw Dr Guindi on 7 September 2009 when she was given a further prescription for Zoloft at the same dosage, which again amounted to a three-month supply of Zoloft;
(c) Dr Mak consulted with the plaintiff on 3 February 2010 in relation to her Type 2 diabetes, with complaints of being lethargic and sleepy. At that time, there was discussion about formulating a mental health treatment plan and, subsequently, on 11 February 2010, a mental health plan was provided. As a result of that plan, the plaintiff was sent to see a psychologist, Dr Xenos;
(d) On 9 April 2010, Dr Mak again provided a prescription for Zoloft, 50 milligrams per day. In particular, Dr Mak was asked about his prescription of Zoloft and the following evidence was given:
Q:“So presumably you wouldn’t have prescribed the Zoloft unless you discussed with her effects that taking Zoloft was having upon her?---
A:Well, I may not have gone through much details on that occasion. I look at so many things as has been mentioned on that day because she said, ‘Well,’ she’s been well and she’s out of prescriptions, she’s come for repeats.
Q:There’s certainly no note by you there that she stopped taking Zoloft?---
A:No, that wouldn’t be my understanding that day, no.
Q:Because that would have been presumably something you would have noted?---
A:And plus I wouldn’t give her a repeat if she isn’t going to take it.”[51]
[51]T211, L6-22
(e) When consulted on 8 May 2010, Dr Mak noted that the plaintiff was on Newstart but wanted to apply for a Disability Support Pension. Dr Mak agreed that in order to do so, she needed a report from her general practitioner and, indeed, Dr Mak prepared a report dated 8 May 2010.[52] When taken to that report, Dr Mak accepted:
[52]See exhibit “B” at pages 1-8 DCB
§ Her medical condition with the most impact was a “metabolic syndrome” which he described as a global diagnosis covering the dyslipidaemia (high in cholesterol), obesity, and Diabetes Type 2.
§ Dr Mak considered that such condition gave rise to lethargy and dizzy spells and would impact on her ability to function and her activities of daily living, and was likely to persist for more than two years, and would deteriorate.
§ The second medical condition in relation to impact was “anxiety and depression” which commenced in about June 2008 of gradual onset, giving rise to depressed mood, panic and anxiety in public and poor sleep, together with impaired cognitive and psychomotor functions. He also considered this impairment was going to persist for more than two years and the prognosis was uncertain.
§ Dr Mak also listed other medical conditions which would cause minimal limited inability to function, and such included Asthma. In particular, the following evidence was given:
Q:“So you were supportive that she was unable to work?‑‑‑
A:Yes. M’hmm.
Q:And might qualify for the disability support pension?‑‑‑
A:Yes.
Q:Do you know what the outcome of that application was?‑‑‑
A:She couldn’t get it, but that was listed on the next entry down here. I think it was in - on 22 May 2010.”[53]
[53]T213, L29 – T14, L3
Dr Mak confirmed that on being refused the pension, he continued to give the plaintiff Centrelink sickness certificates which exempted her from job seeking while on Newstart.
§ On 5 July 2010, Dr Mak again consulted with the plaintiff and reviewed her mental health care plan and made a change to a different psychologist, a Dr Chan in Glenroy. When seen on 9 August 2010, it was noted that she had not seen Dr Chan and, at that time, Dr Mak prescribed Temaze and further Zoloft.
§ Dr Mak agreed that he consulted with the plaintiff on 6 August 2011, at which time he referred her for physiotherapy for lumbar back pain. On that date, as noted earlier in these Reasons, Dr Mak recorded, among other things, “x-ray satisfactory”. Dr Mak accepted that the x-ray most probably was the plain x-ray of the lumbar spine undertaken on 14 July 2011.[54]
[54]See exhibit 2 at page 32 PCB
During the cross-examination, a note dated 7 July 2011, prepared by Dr Mak, was found in various records held by those acting for the plaintiff. Such note was ultimately tendered.[55] In particular, I refer to the following evidence:
[55]See exhibit “A”
MS MYERS:
Q:“All right, so this appears to be dated 7 July 2011. You wrote it?---
A:Yes, I put down, ‘She was retrenched on
1 July 2011’. Now she has become more depressed and she didn’t take the Zoloft for the prior six months prior to that so I offer her to restart it and somehow, it sounded like that didn’t happen, and I gave her the samples of Pristiq. And that’s when I asked myself the same question before - where the samples come from, I can answer my own question now. I actually gave her the samples.Q:All right?‑‑‑
A:On that day, December the 7th, and ‑ ‑ ‑
Q:Then the next - about halfway down the page we’ve got what looks like an M in a ‑ ‑ ‑?‑‑‑
A:Oh yeah, management, that’s right.
Q:Okay?‑‑‑
A:I took her blood pressure and all that, and the management is - well, this is interesting too because I’ve been seeing her on a regular basis. I don’t know why - well, it says here that she had no blood tests done for over a year now, so I put down get some blood tests done, and get the X-ray done because - no, she came in with the three things. That’s right. That’s - like it’s there, one, two, three now. One is because she was retrenched, she needed something for her mood. Two is where the star is, the little star.
Q:Yes?‑‑‑
A:She had right hip to the right thigh - the front of the thigh, some kind of pain - and also slight right lumbar pain, on the right side, on the lower back - on the right side.
Q:Okay?‑‑‑
A:Plus paraesthesia - that means that she had abnormal sensation in those regions, so that justified for an
X-ray that I ordered on that, and the third thing was some repeats of her tablets.”[56][56]T225, L22 – T226, L21
§ Dr Mak confirmed that on 17 October 2011 he arranged for the plaintiff to undergo a CT scan in relation to ongoing bilateral leg pain.
§ After the third consultation on 13 October 2012, Dr Mak did not again see the plaintiff until 3 December 2012. Dr Mak confirmed that he made no note that the plaintiff had told him about any work incident or incidents, or indeed any acute injury.
§ Dr Mak consulted with the plaintiff on 19 January 2013, on which occasion there was a further Centrelink Disability Support Pension report prepared by him.[57]
[57]See exhibit “B” at pages 9-16 DCB
Dr Mak accepted that such report was in similar terms to the earlier one dated 8 May 2010 – the main medical issues being the Diabetes, dyslipidaemia and obesity, followed by her Anxiety and Depression.
However, under that part of the report where the doctor is queried as to whether or not the patient has other medical conditions which are “generally well managed” and “cause minimal or limited impact of ability to function”, Dr Mak listed Asthma and also, for the first time, “spinal stenosis” treated with “rest” and “physio”, together with “lumbar disc bulge” treated with “Mobic” and “physiotherapy”. Dr Mak also marked boxes indicating that he did not expect “Significant improvement”.[58]
[58]See exhibit “B” at page 14 DCB
43 In particular, the following evidence was given:
Q:“And you have made no note there of any acute injury to the back?‑‑‑
A:No.
Q:Or any relationship with work?‑‑‑
A:No.
Q:So it’s highly likely she didn’t tell you about those things, otherwise you would have written them down, wouldn’t you, doctor?‑‑‑
A:Not on that consultation - yeah, not on that consultation.
Q:Yes, she didn’t tell you?‑‑‑
A:M’hmm.
Q:And then 9 February, you saw her - 2013?‑‑‑
A:Yes.
Q:And still managing the osteoarthritis condition and ‑ ‑ ‑?‑‑‑
A:M’hmm.
Q:‑ ‑ ‑ her knees were giving her trouble?‑‑‑
A:Yes.
Q:She had osteoarthritis in her knees as well, she needed some prescriptions for various things, yes?‑‑‑
A:Yes.
Q:And then the next time you saw Mrs Yilmaz is 2 March 2013?‑‑‑
A:Yes.
Q:And on that occasion she said to you, did she, that she had been to a lawyer and that she was going to make a WorkCover claim?‑‑‑
A:Yes.
Q:And she told you that she had been injured on 28 June 2012?‑‑‑
A:Yes.
Q:And so you noted that that’s the first time she’d told you that information, yes?‑‑‑
A:I would say that very likely, that was the first time I became aware of it. Yes?‑‑‑
Q:That it’s work-related.
A:Yes, and she told you that she had been off-work on a medical certificate since 10 February 2013?‑‑‑
A:Yes, m’hmm.”[59]
[59]T229, L19 – T230, L14
44 When queried as to the nature of any medical certificate that was given by the clinic to the plaintiff, Dr Mak considered most probably they were general or normal certificates rather than WorkCover certificates.
The evidence of the consultant psychiatrist, Dr Seyed Assadi
45 The defendant tendered the psychiatric report of Dr Seyed Assadi, dated 1 March 2012.[60] Dr Assadi consulted with the plaintiff on 15 February 2012 on referral from Dr Slesenger, one of the doctors at the Merlynston Village Medical Centre.
[60]See exhibit “C” at pages 17-18 DCB
46 In his report, Dr Assadi notes that he understood the plaintiff to be on a Newstart Allowance and in particular, noted that the plaintiff “was pushed to work but felt that she was not coping with working more than fifteen hours per week”.[61] Dr Assadi obtained the history that she had been working “as a sales person in a clothing shop for three months, working usually six hours but sometimes up to fifteen hours”.[62]
[61]See exhibit “C” at page 17 DCB
[62]See exhibit “C” at page 17 DCB
47 At the consultation, the plaintiff reported to Dr Assadi that she had had Depression, Anxiety and sleep problems for ten years. She also reported phobia of using an elevator and public transport. In particular, she stated she was brooding over the issues and problems that she had gone through in the past and that she would try to cope with her Depression and Anxiety by smoking cigarettes (currently one packet a day), drinking alcohol and talking with her daughter. She was hopeless and did not feel that medication can change anything. She was against medication and did not want to receive any.
48 After taking a history and making a mental state examination, Dr Assadi stated in his report:
“Nursima reports longstanding depression and anxiety in the context of psychosocial issues. She reports that she went through domestic violence and marriage breakup. She has had a tense relationship with her son and daughter-in-law in the past year. She also suffers from medical comorbidities including asthma, diabetes, hypercholesterolemia, possibly vascular complications of diabetes, and arthritis. She has poor insight into her illness, and is against medication and psychological interventions.
I told her to take Lexapro 5mg and instructed her to increase the dose to 10mg mane as a trial of one month. However, I am not convinced she will take medication considering her reluctance. … .”[63]
[63]See exhibit “C” at page 18d PCB
The evidence of the physiotherapist, Ms Marketa Van Valen
49 The plaintiff also relied on the evidence of the physiotherapist, Ms Marketa Van Valen. The Plaintiff’s Court Book initially contained a short report from such physiotherapist dated 1 March 2013.[64] In that report, Ms Van Valen stated, in part:
[64]See exhibit 3 at page 47 PCB
“Ms Yilmaz presented to our clinic on 3rd December 2012 complaining of a right low back pain and right leg pain.
Ms Yilmaz said that in June 2012 [she] had an accident at work and injured her back while pulling a clothing rack. Ms Yilmaz also reported she was troubled with right leg pain.
CT scan revealed L3/4 stenosis secondary to L5 disc bulge and lumbar spondylosis.
I have been treating her with manual physiotherapy, local ultrasound and neural stretches.
Unfortunately, Ms Yilmaz is still troubled by intermittent right leg and low back pain.”[65]
[65]See exhibit 3 at page 47 PCB
50 It is also appropriate to refer to two other documents which initially were not part of the Plaintiff’s Court Book but were referred to in the re-examination of the plaintiff. These documents are:
(a) Referral form for individual allied health services under Medicare for patients with a chronic medical condition and complex care needs;
(b) The physiotherapy notes from Merlyn Physiotherapy. Some of these notes were handwritten and the Court directed that the physiotherapist be contacted, at least, and try and make clear what the handwritten notes state.
51 The referral form was ultimately added to the Plaintiff’s Court Book[66] and also the document with the handwritten notes.[67] The Court was informed that the physiotherapist, Ms Van Valen had been contacted and she had “transcribed” the handwritten note, and this document was also added to the Court Book.[68]
[66]See exhibit 3 at page 47A-47D PCB
[67]See exhibit 3 at pages 47E-47F PCB
[68]See exhibit 3 at page 47G-47I PCB
52 The referral form is signed by Dr Al-Alawi and dated 7 November 2012. In that document, Dr Al-Alawi refers the plaintiff to Merlyn Physiotherapy & Hydrotherapy. I have already referred to the notes of the consultation between the plaintiff and Dr Al-Alawi on 7 November 2012. In the referral, Dr Al-Alawi sets out the complaints by the plaintiff on 7 November 2012 relating to back pain and the degenerative changes shown in both knees by way of the recent x-ray. I also refer to the social history, where Dr Al-Alawi refers to the plaintiff as “not working” – this “assertion” is the subject of a submission made by Leading Counsel for the plaintiff to support the credibility of the plaintiff, to which I will refer later.
53 I refer to the document prepared by Ms Van Valen setting out her “transcription” of the various notes and comments on the document set out at pages 47E to 47F of the Plaintiff’s Court Book. In particular, I note the following:
· Date of initial assessment 3.12.2012.
· Site of pain and paraesthesia (diagram) – “right leg painful much more than left” and “intermittent pins and needles”.
Aggravates or limitation of tasks
· “Wakes up in night.”
· “Able to walk for maximum of one hour before pain and marked increase in lower back pain.”
X-ray results
·“CT scan, L3/4 stenosis secondary to disc bulge, L5 spondylosis.”
Current medication
“Non insulin dependent diabetes mellitus.”
Immediate history and treatment
“… Two years complaints of right leg pain plus pins and needles. Accident at work June 2012 when pulling a heavy trolley.”
Past history
“Chronic LBP [lower back pain] over more than two years.”
Objective movements
“Flexion normal.”
“Extension half range of motion limited by stiffness.”
Diagnosis
“Acute radicular right leg pain.”
Initial treatment
“… note in right hand top.”
“Works in retail part time.”
Following up sessions
Date: 13.12.2012 … .”
“No change.”
Date: 21.2.2013
OBJ: “complains of ongoing pain in right leg. Pain is constant.”
Treat: “Had Mobic/Celebrex, had a specialist assessment in March, US [ultrasound] … .
STMTM [soft tissue massage] Lx lumbar paraspinal muscles, plan exercise program.”
The evidence of Mr Anton Harms, musculoskeletal coordinator
54 The plaintiff also relied on the evidence of Mr Anton Harms, musculoskeletal coordinator at Northern Health, who prepared a report dated 20 March 2013.[69] Mr Harms reported that the plaintiff was examined at the Osteoarthritis Hip and Knee Service on 20 March 2013. At that time, she described the onset of right foot tingling, burning and numbness over a year ago, which later extended to the right knee. The plaintiff indicated that these symptoms were aggravated when she strained her lumbar spine at work attempting to control an out-of-control dress-display unit. She also described that her lumbar spine and right leg symptoms are provoked by standing still and walking, and she has had to cease work because her work required her to stand and walk all day.
[69]See exhibit 9
55 Symptom provocation through standing and walking is consistent with poor lumbar extension and with the central canal stenosis found on the recent CT scan. Foot symptom provocation at rest (standing) is not consistent with peripheral vascular claudication, but there may be two co-existing conditions, lumbar strain/stenosis and claudication.
56 Mr Harms noted that examination of the plaintiff’s knee was unremarkable and knee osteoarthritis is not the reason for her current leg symptoms.
57 The plaintiff, at that time, also stated she had undertaken physiotherapy treatment for her back pain and that she had recently been referred to the WorkCover system. She was discharged from Northern Health as they do not manage lumbar spine problems.
The treatment by the Austin Hospital, and the orthopaedic surgeon, Mr Gerald Quan
58 The plaintiff relies on various reports from the Austin Hospital dated 25 July 2014 and 1 July 2017.[70] Seemingly, the orthopaedic surgeon, Mr Quan was associated with Austin Health and the plaintiff relies on reports from Mr Quan dated 9 July 2013 (addressed initially to Dr Al-Alawi but changed to Dr Mak), a report dated 29 August 2013 (addressed to Dr Mak), a further report dated 22 January 2015 (addressed to Dr Mak), and a report dated 26 May 2016 (addressed to a Dr Nizam, who seemingly was also a doctor at the Merlynston Village Medical Centre).
[70]Both reports are found in exhibit 3 with the first report found at pages 42-44 PCB and the second report found at pages 44-46 PCB
59 The first report from the Austin Hospital is said to be based on the available information held by the “Austin Health medical record”. In particular, the following is noted:
(a) The plaintiff was referred to the orthopaedic surgeons at the Austin Hospital in December 2012 complaining of back pain and associated lateral right leg numbness. It is noted that an x-ray had shown degenerative changes in both knees and a CT scan showed L3-4 spinal canal stenosis secondary to an intervertebral disc bulge and L5 spondylosis;
(b) On 4 July 2013, the plaintiff was seen by the orthopaedic surgeons and a history given of “progressive low back symptoms over many years, progressing over the preceding six months”[71] was noted. At that time, her pain was noted to radiate down the right leg when her back pain was severe, and her walking and activities were restricted to less than one hour, and she was unable to work.
[71]See exhibit 3 at page 42 PCB
An MRI scan was arranged and performed on 16 July 2013.[72]
[72]Most probably this refers to the MRI scan undertaken on 17 July 2013 referred to in paragraph 21(c) of this Judgment
It was reported that the MRI scan showed moderately marked L3-4 vertebral canal narrowing secondary to a broad-based disc bulge, local ligamentum flavum hypertrophy and facet joint osteoarthropathy. The traversing L4 nerve roots were probably compressed within the lateral recesses bilaterally at this level.
(c) On 1 August 2013, the plaintiff’s results were reviewed and at such time, the plaintiff was described as being “quite anxious” and the various treatment options were discussed, including undertaking an L3-4 epidural injection. At that time, it was noted that the plaintiff had concern about proceeding to decompressive surgery;
(d) On 11 November 2013, the plaintiff underwent a CT-guided L3-4 epidural injection which was reported as giving her no improvement when seen on 20 March 2014. A further injection was carried out on 28 April 2014 without complication and, again, the plaintiff reported no improvement when reviewed on 29 May 2014;
(e) Further injections were undertaken on 1 September 2014, following which, on 16 October 2014, the plaintiff was again seen by orthopaedic surgeons. At that time, she continued to refuse surgery, stating that she would prefer “a disability pension or Centrelink support”. At that time, a further injection was thought unlikely to be help and the management options were considered to be ongoing oral analgesia, surgery or “do nothing”. After giving some time to decide her preferred course of action, the plaintiff informed the surgeon on 27 November 2014 that she still refused surgery;
(f) On 29 December 2014, the plaintiff also attended the Emergency Department with worsening of her back pain and sciatica. At that time, there were no new neurological symptoms or signs and she was managed with analgesia. She was ultimately discharged home with further analgesia;
(g) A further MRI scan of the lumbar spine was carried out on 7 January 2015.[73] It was considered that the scan showed moderate to severe central canal stenosis at L3-4, slightly worse compared with the prior examination in July 2013, due to persistent degenerative changes. There was also moderate right L3-4 neural exit foraminal stenosis with no appreciable distortion of the exiting right L3 nerve root;
[73]This is almost certainly the further MRI scan referred to at paragraph 20(d) of this Judgment
(h) On 12 January 2015, the plaintiff underwent a further CT-guided injection at L3-4 and on return to the Emergency Department on 15 January 2015, she advised that the pain had not improved since the surgery, although there was no worsening of her pain and no changes to her neurological examination;
(i) On her return on 22 January 2015, the plaintiff reported that her pain had worsened and she then agreed to surgical intervention and she was put on a waiting list. A pre-operative assessment was then arranged, but the plaintiff did not attend any of these appointments and was removed from the waiting list in May 2015;
(j) The orthopaedic surgeons then consulted with the plaintiff on 17 September 2015, at which time she stated that her previous injections had provided a degree of relief from pain, and after a discussion of various treatment options, the plaintiff elected to try a further injection, which was undertaken on 23 October 2015;
(k) On 26 May 2016, the plaintiff again consulted the orthopaedic surgeons, where it was noted that her previous injection had “provided some relief from her pain” although it had been returning in recent weeks. A decision was made to repeat the injection and this was undertaken on 20 June 2016;
(l) Since December 2016, the plaintiff had been undergoing a pre-operative assessment for surgery and although a chest x-ray in December 2016 was normal, a myocardial effusion study on 9 February 2017 showed a small area of reversible ischaemia in the anteroapical region of the heart consistent with a mildly abnormal range but leading to a recommendation for aggressive cardiac risk factor management;
(m) On 27 February 2017, the plaintiff was seen by the general physicians regarding her pre-operative assessment, at which time various medication adjustments were recommended in addition to a cardiology review prior to surgery;
(n) On 11 April 2017, the plaintiff was seen by a cardiologist and although there was some improvement in her effusion study, she underwent a CT coronary angiogram on 28 June 2017, which corresponded to a very low cardiovascular disease risk;
(o) On 23 June 2017, the plaintiff was contacted regarding her planned surgery and she stated that she was very concerned because of her other health problems, and the decision was made to remove her from the waiting list. She was to request a new referral from her general practitioner should she change her mind regarding surgery.
60 I also refer to the report of Dr Quan dated 9 July 2013, wherein he reports that the plaintiff had had “progressive low back symptoms over many years which had progressed over the last six months”.[74] In particular, he noted that when her back pain is severe, it radiates down her right leg, and “her activities and walking are restricted to less than one hour at a time”.[75]
[74]It is to be noted that in her first affidavit at paragraph 19, the plaintiff disputes the history that she had low-back symptoms over many years
[75]See exhibit 3 at page 38 PCB
The evidence of Dr John H Taylor
61 The plaintiff relied on a medical report from a general practitioner, Dr John H Taylor, dated 10 June 2017.[76] Dr Taylor was working at the clinic where Dr Mak and Dr Al-Alawi had been working. He noted that the plaintiff initially consulted with him on 14 June 2016 when she presented to him for a certificate for Centrelink, and counselling. At that time, she complained of ongoing pain in her lower back, and informed the doctor that she was having injections to her spine and on a waiting list for a back operation.
[76]See exhibit 3 at pages 52-53 PCB
62 Dr Taylor noted that since that time he has seen her on a regular basis for her medical problems, and he noted the history of a variety of epidural injections and her being on the waitlist for surgery. He noted that the latest MRI scan (presumably the MRI scan undertaken on 8 January 2015),[77] revealed that the plaintiff had marked narrowing of the L3-4 level, impinging on the spine.
[77]See exhibit 2 at page 35 PCB
63 Dr Taylor, at the time of writing his report, considered her prognosis was “guarded” and although noting he was not the treating doctor at the time of the initial “injury”, her records indicated that her employment was a significant contributing factor to such injury. He considered that at that time her injuries had not stabilised, given the need to undergo surgery and further epidural injections, and also she had developed Anxiety and Depression as a direct result of the injury.
64 In particular, Dr Taylor was of the opinion that she was unfit for her pre-injury employment as a sales person as a direct result of her injuries and would need to be assessed as to the suitability for retraining given the extent of her incapacity, age, education, skills and work experience. Also, he noted that her ability to undergo routine activities of daily living had been materially affected by the injury as she has combined physical and psychological problems. At that time, he noted that her injuries were severe enough to warrant spinal surgery but has been postponed “due to a heart condition” and that she has adopted a secondary psychological state which also directly impacts on her ability to work.
The evidence of the psychiatrist, Dr Raid Al Humrany, and the psychologist, Dr Sophia Xenos
65 The plaintiff tendered the reports of the consultant psychiatrist, Dr Raid Al Humrany, dated 12 April 2013,[78] and the report of the clinical psychologist, Dr Sophia Xenos, dated 21 October 2013.[79]
[78]See exhibit 3 at pages 49-51 PCB
[79]See exhibit 3 at page 48 PCB
66 Dr Joseph Slesenger, a general practitioner at the Merlynston Village Medical Centre, referred the plaintiff to the psychiatrist, Dr Al Humrany, on or about 12 April 2013. Dr Al Humrany noted that the plaintiff described a:
“… one year history of alleged work related physical injury (back problems), chronic pain syndrome with an adjustment disorder and mixture of anxiety and episode of depression in the context of previous history of on and off anxiety and depression with obvious personality disorder … ”.[80]
[80]See exhibit 3 at page 49 PCB
67 Later in his report, Dr Al Humrany obtained a history that:
“During 2012, and while she was doing her job, Ms Yilmaz told me that she injured her back, however she was trying to push herself and maintain the job in order to have a good income and not to lose that job as she alleged.
Ms Yilmaz told me that she had ongoing pain with increasing intensity that affected her performance, achievement whether at work or at home environment.
Ms Yilmaz told me that she was seeing her family doctor and requesting a pain killer in order to cope with the job requirement in an adequate way.
Ms Yilmaz alleged that she was not happy to mention that matter to her boss or supervisor in order not to lose her job until recently when she felt the pain became so intrusive, recurrent and interfered dramatically with her ability to achieve her goals in an adequate way.”[81]
[81]See exhibit 3 at page 50 PCB
68 After that one occasion, Dr Al Humrany got the “impression” that the plaintiff had a work-related physical trauma, Chronic Pain Syndrome and Adjustment Disorder with a mixture of anxiety and episodes of Depression in the context of long-term on-and-off Anxiety and Depression and obvious personality traits. He commenced her on Pristiq, an anti-depressive medication, and advised her to be seen by a psychologist to modify her negative thoughts.
69 Dr Sophia Xenos, clinical psychologist, noted that the plaintiff was referred to her in September 2013 by her general practitioner, and at the time of her report, she had been seen on three occasions. Dr Xenos noted that in addition to Chronic Asthma and “lowered back pain sustained during a workplace injury”, the plaintiff had reported longstanding anxious and depressive symptomology which is impacting significantly on her daily functioning and her ability to maintain stable and consistent employment. Dr Xenos was writing the report to support the application by the plaintiff for the Disability Support Pension.
The Claims for compensation made by the Plaintiff
70 The plaintiff lodged a “Worker’s Injury Claim Form” dated 9 March 2013.[82] In that Claim Form, the plaintiff set out various answers to questions posed. I refer to some of the questions and answers:
[82]Exhibit 6 at pages 164-165 PCB
“What is your injury/condition, and which parts of your body are affected?
Work related injury lumbar spine, back pain hip and right leg.
What happened and how were you injured?
By trying to pull a rack with 4 arms full of clothes moving it to another position towards the entrance door - Pulling it to move it, and the wheel came off it. The rack fell with all clothes to the floor. I tried to lift and put the wheel back on it.
…
What was the date and time that the injury/condition occurred?
28/06/2012 – 7-8 PM.
When did you first notice the injury/condition?
3/7/2012 – This was the next time I saw manager.
…
If you did not report the injury/condition, or there was a delay please explain why.
I thought I would be OK, it would go away. I didn’t want to lose my job so I kept qui[e]t.
…
How many standard hours did you work each week before being injured?
20-38 hrs.”
71 The plaintiff identified Dr Mak as her treating general practitioner and that she gave the defendant her first medical certificate on 12 February 2013.
72 The Claim Form was accompanied by a letter dated 5 February 2013 authored by the plaintiff.[83] In that letter, the plaintiff stated, in part:
[270]See exhibit 8
[271]See exhibit 8
211 Dr Mak gave evidence that he was a qualified general practitioner who had been in practice for thirty-three years. He confirmed that he did practise at the Merlynston Village Medical Centre up until approximately the end of 2013 and that over his time there he did treat the plaintiff. Under cross-examination, and when queried by the Court, Dr Mak stated that it would be far more likely than not, that if someone gave a history of hurting his or her back at work that would be recorded.[272] Under cross-examination the following evidence was given:
[272]T223, L29-31
Q: “And then the next time you saw Mrs Yilmaz is 2 March 2013?---
A: Yes.
Q:And on that occasion she said to you, did she, that she had been to a lawyer and that she was going to make a WorkCover claim?---
A:Yes.
Q: And she told you that she had been injured on 28 June 2012?---
A: Yes.
Q:And so you noted that that’s the first time she’d told you that information, yes?---
A:I would say that very likely, that was the first time I became aware of it.”[273]
[273]T230, L2-11
212 Dr Al-Alawi was also called and gave evidence. She described herself as a practising general practitioner who, beyond the normal qualifying degree, has a Fellowship from the Australian Royal College and New Zealand Royal College as a specialist general practitioner. She confirmed that she had worked at the Merlynston Village Medical Centre in the past, and also confirmed that she made a report very recently, on 13 December 2017,[274] at the behest of those acting for the plaintiff.[275]
[274]See exhibit 3 at page 37A PCB
[275]She had available to her various medical records
213 In that report, Dr Al-Alawi makes clear that she had no recollection of the various attendances by the plaintiff as recorded in the notes which were supplied to her. Dr Al-Alawi noted that she had not seen the plaintiff for over four years. Dr Al-Alawi said in such report that she generally takes “full notes” and feels confident she could rely on them. She also noted that in relation to the various consultations she had with the plaintiff there is no note of the plaintiff making a WorkCover claim, or any mention of a work-related injury. Dr Al-Alawi went on to say that she does not believe that the plaintiff would have mentioned to her that she had a work-related injury at any of the times she was seen by her, because the notes make no mention of any work-related injury or WorkCover claim.
214 After a consideration of all the evidence, I find that at no time prior to 2 March 2013 was any doctor at the Merlynston Village Medical Centre and, in particular, Dr Mak and Dr Al-Alawi, informed that the plaintiff had suffered any type of work-related back injury and, in particular, any injury on 28 June 2012. Consistent with the evidence of Dr Mak and Dr Al-Alawi, I consider it more probable than not that if either or both of those doctors had obtained a history of a work-related incident, it would have been recorded in the notes.
215 It is also to be noted that there is little correspondence between the dates of the alleged injuries and attendance on the general practitioners. The first consultation after the alleged injury on 28 June 2012 was nearly four weeks later with Dr Al-Alawi, and for reasons unconnected with back injury or back pain but, rather, gynaecological issues. Similarly, the next consultation on 18 August 2012, which would seemingly encompass the alleged “second incident” about a month or so after 28 June, was to review the results of the gynaecological testing.
216 Of course, it is not the situation that the plaintiff never reported symptoms of back pain – clearly she did – but in no way were they related to any incident of work injury.
217 This must be compared to the first affidavit of the plaintiff, wherein the overwhelming “flavour” of the affidavit is that the plaintiff suffered a work-related injury on 28 June 2012, and thereafter suffered symptoms causing her to seek treatment, initially from doctors at the Merlynston Village Medical Centre and, later, specialist treatment involving physiotherapy and the attendance on orthopaedic surgeons. Such is not borne out by the available material.
218 Although one may comprehend a worker not telling his or her employer about a work-related injury (as was sometimes suggested by the plaintiff), because of a variety of matters – perhaps the most obvious being job security – it is difficult to contemplate why there would be no mention to her treating doctors as to the cause of such pain, other than the obvious one – that such pain is not work-related. Of course, in the circumstances of this matter, the plaintiff did assert that she told, in particular, Dr Al-Alawi and Dr Mak, of the work-relatedness of her condition from early days.
219 In their written submissions, counsel for the plaintiff submitted that the medical notes and history recorded by Dr Al-Alawi – particularly on 7 November 2012 and 21 November 2012 – are “deficient in failing to record the plaintiff’s complaint of back pain or work injury”. Those acting for the plaintiff assert that as a matter of probability, that must be the case, based on the following sequence of events:
(a)In her cross-examination, as already recorded, Dr Al-Alawi had no recollection of seeing the plaintiff and was completely reliant upon her clinical notes. If Dr Al-Alawi’s “interpretation of her clinical notes is accepted”, then the plaintiff had not mentioned any back pain or any work injury on 7 November 2012, and back pain without mention of the work-related cause on 21 November 2012;
(b)Counsel for the plaintiff then referred to the referral document dated 7 November 2012,[276] whereby Dr Al-Alawi referred the plaintiff for physiotherapy. It is noted by counsel for the plaintiff such document under the heading “SOCIAL HISTORY”, refers to the plaintiff “not working”. On the basis that that allegation must have been wrong because the plaintiff was working at that time, those acting on behalf of the plaintiff submit that is evidence of the material being deficient and incomplete;
(c)More particularly, those acting for the plaintiff then refer to what is said to be the history obtained by the physiotherapist, Ms Van Valen, on 3 December 2012, which included “accident work June 2012 while pulling a heavy trolley”;
(d)It was submitted that, on the balance of probabilities, it was far more likely that the plaintiff had told Dr Al-Alawi of her work injury and subsequent back pain as a basis for the referral to the physiotherapist. In that sense, the history recorded by Dr Al-Alawi is “incomplete”.
[276]See exhibit 3 at pages 47A-47D PCB
220 I reject such submission for the following reasons:
(a)Clearly enough, Dr Al-Alawi did consult with the plaintiff on 7 November 2012 and 21 November 2012. I referred to those consultations at paragraph 25(p) and (q) of this judgment. It is to be remembered that the previous consultation to 7 November 2012 was a consultation with Dr Mak on 18 August 2012, at which time Dr Mak requested that the plaintiff undergo a CT scan of her lumbar spine based on some of her complaints at that consultation – none to do with low back pain or any work-related incident;
(b)When seen on 7 November 2012, Dr Al-Alawi did record, among other things:
“OA
back pain with radiculopathy
Had xray showed deg changes/both knees
Lumbosacral CT showed L3/4 canal stenosis secondary to disc bulg, L5 spondylosis
… .”[277]
and at that time prescribed, among other things, that she be referred for physiotherapy. Indeed, in the physiotherapy referral, Dr Al-Alawi refers to the very things she recorded on 7 November 2012. There is no suggestion whatsoever that there was any work-related back pain or, indeed, any work-related injury – or any injury.
[277]See exhibit 8
221 In her report, Dr Al-Alawi, based on the clinical note dated 7 November 2012, indicates that the plaintiff was seen by her to discuss the radiology results from the CT scan which revealed degenerative changes and disc bulge, which in turn prompted the doctor to refer the plaintiff for physiotherapy. The doctor does say, in that report, that there was “no mention of back pain and no mention of work injury”, which may be incorrect insofar as there is reference in the note on that day “back pain with radiculopathy” – whether that refers to what she had experienced giving rise to the CT scan on that day is not clear. However, even in the event there was a complaint of back pain on that day, there is no note whatsoever suggesting that any symptoms the plaintiff may have suffered were work-related, generally or more specifically, to 28 June 2012. I certainly do not accept that a reference to “not working” in some way suggests that she failed to record a reference by the plaintiff to her complaints being work-related or, more specifically, to an event on 28 June 2012.
222 Furthermore, in the submission made by counsel for the plaintiff, it is assumed that the physiotherapist, Ms Van Valen, obtained the history that the plaintiff had an accident at work in June 2012 while pulling a heavy trolley, on the initial assessment, being 3 December 2012.
223 It is to be noted that initially, the plaintiff relied on a report from the physiotherapist, Ms Van Valen, dated 1 March 2013.[278] That report reads:
[278]See exhibit 3 at page 47 PCB
“Mrs Yilmaz presented to our clinic on 3 December 2012 complaining of a right low back pain and right leg pain.
Mrs Yilmaz said that in June 2012, had an accident at work and injured her back while pulling a clothing rack. Ms Yilmaz also reported she was troubled with right leg pain.
CT scan revealed L3/4 stenosis secondary to L5 disc bulge and lumbar spondylosis.
I have been treating her with manual physiotherapy, local ultrasound and neural stretches.
Unfortunately, Ms Yilmaz is still troubled by intermittent right leg and lower back pain.”
224 During the course of the trial, there was produced, a document which appeared to be from the physiotherapist, but with handwriting over the front of it. This document was also added to exhibit 3.[279] As I have already recorded, the Court directed that that document be “translated” and, indeed, this produced the document dated 2 December 2017, seemingly completed by the physiotherapist and setting out the handwriting in the previous document. As I have already recorded, that document, under the heading “IMMEDIATE HISTORY AND TREATMENT” refers to “two years complains of right leg pain + pins and needles, Accident at work June 2012 while pulling a heavy trolley”, and under the heading “PAST HISTORY”, “Chronic LBP (lower back pain) over more than 2 years”.[280]
In the document dated 1 March 2013, Ms Van Valen makes no reference to the history of right leg pain for two years prior to December 2012, or the chronic low back pain over more than two years. The only reference to injury is to an accident at work in June 2012, when the plaintiff “injured her back while pulling a clothing rack”. It is also to be noted that such note, dated 1 March 2013, was only one day prior to Dr Mak being told, as I have found for the first time, that the plaintiff alleged an injury on 28 June 2012, having recently attended a lawyer.
[279]See pages 47E-F PCB
[280]See exhibit 3 at PCB 47H
225 Unfortunately, Ms Van Valen was not called to give evidence at the trial and it is not clear why this note dated 1 March 2013, addressed “To whom it may concern” came into existence, bearing in mind that the plaintiff last saw Ms Van Valen on 21 February 2013. Furthermore, it is not clear when the handwriting on the original document was added to that document.
226 Given all the evidence surrounding this issue, I tend to the view that the plaintiff probably did not raise the alleged incident of injury on 28 June 2012 until sometime in 2013 – thus the scribbled notes across the original documentation and the “To whom it may concern” letter dated 1 March 2013.
227 The plaintiff also gave evidence during the course of the proceeding that the incident which she alleges occurred on 28 June 2012 was in the evening when she was the only worker at the place of employment. The plaintiff gave evidence that on the next day she rang her manager at some time between 8.30 and 9.00 o’clock and told her that she had suffered injury when a wheel came off the rack.[281]
[281]See T77, L3-15
228 It is to be noted that this is the first time that the plaintiff had ever said she reported such injury to her manager one day after the alleged injury. There is no reference to this allegation in the first affidavit or, indeed, the second affidavit.
229 Also, I refer to the letter from the plaintiff addressed to “Whom it may concern” in relation to the late filing of the first claim form.[282] In that letter, the plaintiff states, in part:
… “I was just worried that I had to get this job done and finished. Because my store manager, Maria Irardo, was quick to report us staff, to the regional manager, who is Heather Sloan. I was scared because I didn’t want to be told off, for a stupid rack, and I needed my job, so my manager won’t have anything to complain and report about us, to the regional manager. So at this point of the incident a customer saw what had happened and came to help me she reached out her hand and said ‘Are you alright?’. ‘Yes, I’m ok’, but I said to her not to help me just in case she would hurt herself, and customers were not allowed to lift things in our store, I thanked her for her offer. But then I felt pain in my back and my leg was felling (sic) stretched but I thought I will be ok I’m strong it will go away and I didn’t think anything of it and continued to do my work, so when I got home that day I lied down thinking I have overworked myself or the rack just tired me out.
But in my case it was hard to take time off because one staff member had gone on her annual leave, it was hard to take some time off, basically even if you were sick you can’t not turn up for work. I had a hard time to get some time off for my daughter’s wedding I had to book that about a month in advance, and that was another reason I had to work, I managed to get 2 weeks off in September and that was a rest time for me.
Next time I told my manager, Maria Irardo, but she didn’t ask anything and said ‘oh really’. But I didn’t want to do anything about it because I didn’t want to lose my job, because of my daughter’s wedding I really needed to work at this time, so I kept quiet about it all didn’t want it to be a problem … .”[283]
[282]See exhibit “H” at pages 95-96 DCB
[283]See exhibit “H” at pages 95-96 PCB
230 I also refer to the Claim Form of the plaintiff dated 9 February 2013. The question, “When did you report the injury/condition to your employer?” is unanswered, as is the question “What is the name and position of the person you reported the injury condition to?”. Under the question, “When did you first notice the injury/condition?”, there is written “3/7/12” – this is the next time I saw manager”. In the Employer’s Injury Claim Report dated 21 March 2013, it is reported under the question “When did the worker report the injury to you?” – “15/03/13”.
231 I also refer to the following evidence:
Q:“The fact of the matter is you didn’t report this injury to your employer, did you? It’s only when you put in your workers’ injury claim form that you reported you’d suffered a work injury?---
A:Because I didn’t want to go through that path. I was hoping I would get better and continue working.”[284]
[284]T82, L17-22
232 I also refer to the report of the psychiatrist, Dr Al Humrany, dated 11 April 2013.[285] Dr Al Humrany examined the plaintiff on or about 12 April 2013 on referral from Dr Slesenger at the Merlynston Village Medical Centre. Dr Al Humrany obtained the history that the plaintiff injured her back, however she was trying to push herself and maintain her job in order to have a good income.
[285]See exhibit 3 at page 49-51 PCB
233 In particular, Dr Al Humrany reported that the plaintiff told him that she was seeing her family doctor and requesting a painkiller in order to cope with the job requirements in an adequate way. In particular, the plaintiff alleged that she was not happy to mention the matter to her boss or supervisor in order not to lose her job. That changed “recently”, when she felt the pain became so intrusive and recurrent it interfered with her ability to achieve her goals in an adequate way. Dr Al Humrany noted that the plaintiff had been off work since February 2013, using sick leave as well as annual leave, although a claim had been recently submitted under WorkCover.
234 I also refer to the following evidence when the plaintiff was cross-examined about her history to Dr Al Humrany:
Q:“And you told him the history of how you say you suffered injury at work?---
A:Yes.
Q: And he’s recorded that you mentioned one incident. Is that right?---
A: I don’t know.
Q:You told him that you weren’t happy to mention that matter to your boss or supervisor because you didn’t want to lose your job and you didn’t want to mention it until recently when the pain became so obtrusive?---
A:It may have been the case, yes.
Q:Because the truth is you didn’t mention it at work until you put in your worker’s complaint in March 2013?---
A:As I said, I didn’t want to lose my job.”[286]
[286]T108, L16-27
235 In all the circumstances, I consider it unlikely that the plaintiff did ring her employer the morning after the alleged injury on 28 June 2012. Furthermore, I also consider it unlikely that the defendant had any knowledge of an allegation of injury until such time the Claim Form had been served in February 2013.
236 It must be borne in mind that the plaintiff accepted that she lost no time off work for any back injury during the time that she was employed by the defendant up to ceasing work in February 2013. The plaintiff accepted, under cross-examination, that the reason she gave for ceasing work in February 2013 was for gynaecological reasons. It must also be remembered that in January 2013, the plaintiff, with the assistance of Dr Mak, was making a claim for the Disability Support Pension, with the two major components being her longstanding Depression and Anxiety and her Metabolic Disorder (although reference was made to a back condition, which was “well contained”).
237 Finally, I wish to refer to the evidence about what the plaintiff said about her intake of Zoloft over the years leading up to her employment with the defendant. Although appreciating that such issue does not directly relate to whether or not compensable injury occurred, it does highlight, again, the unreliability and probable lack of credibility on the part of the plaintiff. Initially I refer to the Merlynston Village Medical Centre records[287] and, in particular, the prescription history at the beginning of the records that details the plaintiff being prescribed Zoloft on the following occasions:
[287]See exhibit 8
(a)On 18 June 2008, Dr Guindi, prescribed one packet of 30-milligram tablets, plus five repeats;
(b)On 28 February 2009, Dr Mak prescribed thirty 50-milligram tablets, with two repeats;
(c)On 24 August 2009, Dr Madeleine De Haan, prescribed thirty 50-milligram tablets, with two repeats;
(d)On 5 January 2010, Dr Guindi prescribed thirty 50-milligram tablets, with two repeats;
(e)On 19 April 2010, Dr Mak prescribed thirty 50-milligram tablets, with one repeat;
(f)On 9 August 2010, Dr Mak prescribed thirty 50-milligram tablets, with one repeat.
238 In her first affidavit, the plaintiff admits to being prescribed Zoloft “to try and improve my mental outlook”.[288]
[288]See exhibit 1 page 9 PCB
239 When cross-examined as to whether the plaintiff was prescribed medication for her Depression over the period from mid 2008 to mid 2010, the plaintiff initially denied being prescribed any medication. In particular, the following evidence was given:
Q:“Okay, and were you prescribed medication in that - at all in that period, June 2008 to May 2010 for your depression?---
A:No.
Q: You weren’t?---
A: No.
Q: Rack your brains, Mrs Yilmaz. Are you sure?---
A: I may have, but I don’t remember ongoing - taking them.
Q:So you may have been prescribed medication, but you didn’t take them?---
A:No, I didn’t.
Q: Ever?---
A: Because I didn’t want to be addicted to them.
Q:Did you take the medication at any time between June 2008 and May 2010 - - -?---
A:I can’t remember, to be honest.
Q:Let me finish the question, Mrs Yilmaz - between June 2008 and May 2010, did you at any time take the medication that was prescribed by your GP for your depression?---
A:I can’t remember, to be honest. Even if I did, even if they did prescribe it, probably taken it - one or two and that’s it, because I didn’t like being addicted.
Q:All right. So is this fair - you are not completely sure that you didn’t take any of it- - -?---
A:M’hmm.
Q:- - - and if you did take any, it would have been just a few tablets, one or two, maybe a handful- - -?---
A:Just a trial.
Q: - - - just to give it a go and then no more?---
A: Yes.”[289]
[289]T36, L12 – T37, L3
240 Later, the plaintiff was cross-examined about various prescriptions of Zoloft in February 2009, August 2009, January 2010, April 2010 and August 2010. Many of her answers were constituted by “I can’t remember” or “I don’t know”, or “No, I’m not sure”. Ultimately, the thrust of her evidence was that she may initially have started taking Zoloft when prescribed, but did not continue to take it after the initial one or two.
241 The plaintiff, who responds to a question from the Court, stated that she would have told Dr Mak if she came to a decision that she was not going to take any more Zoloft.[290] Furthermore, Dr Mak, under cross-examination in relation to a consultation on 19 April 2010, which he described as a mental health care plan review. In particular, the following evidence was given:
[290]T40, L9-22
Q:“Is that to give her more visits with the psychologist?---
A:Yes, that’s right.
Q:And below that, ‘BSLs,’ that’s blood sugar level, that’s related to her diabetes?---
A:Yes.
Q:Then ‘Been well, out of prescriptions,’ and then the next entry that starts - - - ?---
A:‘Cannot concentrate. Prefer to stay off work any more. Seeing Centrelink next week. She get the form for maybe disability support pension.
Q:Then we see under, ‘Reason for visit’ she was suffering from lethargy and couldn’t concentrate?---
A:Asking about if she could go on the disability support pension with Centrelink.
Q:Once again there, am I right you prescribed Zoloft?---
A:As a repeat, yes.
Q:So she was continuing to take the Zoloft?---
A:Yes.
Q:At 50 milligrams, one per day?---
A:M’mm.
Q:And if we just go back to the beginning which gives us the prescriptions. So 19 April 2010 ‘Zoloft 30’ with one repeat?---
A:With one repeat this time, is it? Yes, it’s only one repeat this time, yes.
Q:So presumably you wouldn’t have prescribed the Zoloft unless you discussed with her effects that taking Zoloft was having upon her?---
A:Well, I may not have gone through much details on that occasion. I look at so many things as has been mentioned on that day because she said, ‘Well,’ she’s been well and she’s out of prescriptions, she’s come for repeats.
Q:There’s certainly no note by you there that she stopped taking Zoloft?---
A:No, that wouldn’t be my understanding that day, no.
Q:Because that would have been presumably something you would have noted?---
A:And plus I wouldn’t give her a repeat if she isn’t going to take it.”[291]
[291]T210, L21 – T211, L22
242 Ultimately, under re-examination, the plaintiff said at one stage, when pressed as to her Zoloft use, that she may have used it for “the longest, maybe a week, maybe a month.”[292] I also refer generally to the re-examination of the plaintiff in regard to the issue of Zoloft, and generally found her responses to be vague and, to a degree, non-responsive.
[292]T130, L19-20
243 Although I accept that at various places in her evidence, the plaintiff asserted that she did not like taking medication and, indeed, on some occasions had not taken medication, I consider, when one looks at all the evidence in relation to the uses of Zoloft, the plaintiff set out to minimise such use and to downplay her psychological issues over the period from 2008 to 2010 or 2011.
244 Ultimately, I have found the plaintiff to be generally unreliable, and in many areas, not creditable. Her reliability and credibility are important in determining whether or not a compensable injury occurred. It is to be noted that all the medico-legal specialists are reliant on what she asserts her history was and, in particular, whether she suffered incidents of injury during the course of her employment and whether the nature of her work caused worsening symptoms. Such opinions are of no weight if such histories are wrong. In this respect, I also note that Dr Mak ultimately wrote a report on 25 May 2013, supporting the plaintiff on the basis of what he refers to as the “alleged work-related injuries” and the “claim” of the plaintiff that she suffered injury on 28 June 2012. Again, clearly enough, such opinion stands or falls on the allegation of injury on 28 June 2012 being correct.
245 As I pointed out earlier in this Judgment, based on the radiological studies available and, indeed, the complaints made by the plaintiff to various doctors at the Merlynston Village Medical Centre, I do accept that she has had, on occasion, low back pain, which clearly was thought to be relevant to her degenerative spine, but in no way was it suggested by any of the doctors at the Merlynston Village Medical Centre prior to early 2013 that there was any work-related injury.
246 To my mind, this is perhaps the most critical issue, in that the plaintiff, notwithstanding her assertions to the contrary, never informed any of the doctors at the Merlynston Village Medical Centre of the injury on 28 June 2012 – or, indeed, any other injury at the employer’s premises – until early 2013. This is in the context that if one accepts her assertion that she suffered immediate and dramatic pain following the incident on 28 June 2012, and continued to suffer such pain but “battled on”.
247 I have given consideration to determining other issues that would arise if the Court was satisfied that the plaintiff had suffered a compensable back injury. Such issues would involve the nature and extent of any such injury – her “without injury” earnings, and her present capacity for employment. Furthermore, issues would arise as to consequences resulting from any alleged work injury given her pre-existing limitations. In all of the circumstances, I have come to the view that it would be inappropriate to determine these matters in the context where I have found that the reliability and credibility of the plaintiff is poor.
248 Accordingly, based on my determination that the plaintiff has not suffered a compensable low back injury during the course of her employment with the defendant, I dismiss the application.
249 I will hear the parties on the question of costs.
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Annexure “A”
1 The plaintiff tendered the following documents:
Exhibit 1
·Affidavits of the plaintiff sworn 12 September 2015 and 9 October 2017
·Affidavit of Ms Derya Baritakis – the daughter of the plaintiff – sworn 9 October 2017
·Affidavit of Ms Tulin Nouri – a friend of the plaintiff – sworn 10 October 2017.
(All such documents are found at pages 7-31 of the Plaintiff’s Court Book (“PCB”)).
Exhibit 2
·X-ray of the lumbar spine dated 14 July 2011
·CT scan of the lumbosacral spine dated 29 October 2012
·MRI scan of the spine dated 17 July 2013
·MRI scan of the lumbar spine dated 8 January 2015.
(All such documents found at pages 32-35 PCB).
Exhibit 3
·Report of a treating general practitioner, Dr Paul Mak, dated 25 May 2013
·Report of a treating general practitioner, Dr Suzan Al-Alawi, dated 13 December 2017
·Reports and letters from the orthopaedic surgeon, Mr Gerald Quan, dated 9 July 2013; 29 August 2013; 26 January 2015 and 26 May 2016
·Report from the Austin Hospital dated 25 July 2014
·Further report from the Austin Hospital dated 1 July 2017
·Report of the physiotherapist, Ms Marketa Van Valen, dated 1 March 2013 (and annexures)
·Report of the psychologist, Dr Sophia Xenos, dated 21 October 2013
·Report of the psychiatrist, Dr Raid Al Humrany, dated12 April 2013
·Report of the general practitioner, Dr John Taylor, dated 10 June 2017.
(All such documents found at pages 36-47 and 48-53 PCB).
Exhibit 4
·Medico-legal report of the orthopaedic surgeon, Mr Michael Khan, dated 2 August 2014
·Medico-legal report of the rheumatologist, Dr Alex Stockman, dated 8 April 2014
·Medico-legal report of the psychiatrist, Dr Paul Kornan, dated 10 June 2014
·Medico-legal report of the neurosurgeon, Mr Paul D’Urso, dated 21 August 2017
·Medico-legal report of the psychiatrist, Dr Brendan Hayman, dated 7 September 2017
·Medical-legal report of orthopaedic surgeon, Mr Thomas Kossmann, dated 16 October 2017.
(All such documents found at pages 54-79 and 131-163 PCB).
Exhibit 5
·Reports of the psychologist and vocational specialist, Mr Bill Radley, dated 27 September 2016 and 28 August 2017.
(All such document found at pages 80-130 PCB)
Exhibit 6
·Claim Form of the plaintiff dated 9 February 2013, together with Employer Injury Claim Report dated 21 March 2013
·Letter from defendant to plaintiff dated 13 September 2013
·Claim Form of the plaintiff dated 25 October 2013.
(All such documents found at pages 164-169 PCB).
Exhibit 7
· Summary of gross earnings (to be provided).
Exhibit 8
· Clinical notes of North Coburg Medical Centre, printed 6 April 2016.
Exhibit 9
·Letter from Mr Anton Harms to Dr Paul Mac, dated 20 March 2013, together with clinical notes.
The defendant tendered the following material:
Exhibit A
·Handwritten document of Dr Mac dated 7 July 2011.
Exhibit B
·Two Centrelink disability support pension medical reports dated 8 May 2010 and 19 January 2013.
(All such material found at pages 1-16 of the Defendant’s Court Book (“DCB”)).
Exhibit C
· Medico-legal report of psychiatrist, Dr Seyed Assadi dated 1 March 2012.
(Such report found at pages 17-18 DCB).
Exhibit D
·Medico-legal report of occupational physician, Dr Geoffrey Graham, dated 10 April 2013.
(Such report found at pages 19-26 DCB).
Exhibit E
·Medico-legal reports of occupational physician, Dr Gary Davison, dated 3 March 2014 and 24 October 2017.
(All such reports found at pages 27-42 DCB).
Exhibit F
·Medico-legal reports of the orthopaedic surgeon, Mr Michael Dooley, dated 14 December 2015, 26 April 2016 and 20 October 2016.
(All such reports found at pages 43-53 DCB).
Exhibit G
·“Permanent Change to Part Time Contract Hours” dated 10 April 2012.
(All such documents found at page 94 DCB).
Exhibit H
·Letter from the plaintiff dated 5 February 2013.
(Such letter found at pages 95-96 DCB).
Exhibit I
·Home Medication Management Review Report, dated 19 June 2012.
Exhibit J
·Leave Application form.
Exhibit K
·Letter from Dr Julia Kirby.
Exhibit L
·Letter from the plaintiff’s solicitors (Melbourne Injury Lawyers) to Mr Khan, dated 1 April 2014.
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